STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


BARRY E HAYES, Employee

WOODMANS FOOD MARKET INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00005587MD


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked six and one-half years as a third-shift stocker for the employer, a grocery store business. Upon hire the employee received the employer's policies which provide that sleeping on the job was a serious violation. Because he worked third shift the employee was allowed to take breaks at his convenience in the break room. As a stocker the employee was not allowed to sit in the store aisles. In the last year of his employment the employee received two written "reminders" to be at his workstation on time.

On September 20, 2000, the employee, as was his practice, took a large number of herbal supplements on his lunch break. However, on this evening, about one hour after lunch, his stomach became upset. The employee decided to sit in his stocking aisle on two boxes and rest. He fell asleep and was observed by his supervisor. He was discharged on September 22, 2000, for sleeping at work.

The issue to be decided is whether the employee's actions, which led to his discharge, constituted misconduct connected with his work.

In Boynton Cab Co. v. Neubeck & Ind. Comm., 237 Wis. 249, 296 N.W. 636 (1941), the leading case with respect to the meaning of the term "misconduct" as applied to unemployment compensation in the United States, the court said, in part, as follows:

. . . the intended meaning of the term 'misconduct' . . . is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' with in the meaning of the statute.

The question is whether the employee was acting intentionally when he fell asleep at work. The commission recently noted in Seelow v. Scapa Rolls (Neenah) LP, UI Dec. Hearing No. 00403067AP (LIRC Dec. 20, 2000):

It should go without saying that employers reasonably may expect that their employees not be sleeping on the job. But such instances still must be intentional conduct by an employee, and the record in this case indicates that it was not. The courts recently have rejected an interpretation of the misconduct statute which would automatically ascribe misconduct to an incident of falling asleep. In keeping with this, the commission has distinguished the situation where, for example, an employee hides himself in order to sleep and not be caught, from a situation where an employee inadvertently falls asleep.

In William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 94-CV-0213 (Wis. Cir. Ct. Dane County Dec. 23, 1994); aff'd. William J. McKibbin v. LIRC, Marten Transport, Ltd., and R.E. Harrington, Inc., No. 95-0234 (Wis. Ct. App. Feb. 29, 1996) the employee was an over-the-road truck driver who fell asleep at the wheel of his rig. The rig rolled over causing $19,000 worth of damage. He was discharged. The commission found misconduct, reasoning that falling asleep at the wheel was negligence of such a degree that it constituted misconduct despite the fact that it was a single incident. The circuit court reversed, holding that while misconduct could be found where there are deliberate violations or disregard of the employer's standards or carelessness or negligence of a certain degree or recurrence, the commission had ignored the definition of the degree of negligence required to find misconduct. The evidence did not show conduct of such a degree of negligence as to manifest wrongful intent or evil design. The court of appeals affirmed.

Even a discharge based on multiple instances of sleeping on the job requires a finding of intent to fall asleep. In Aiken v. Village of Elm Grove, No. 786-525 (Wis. Cir. Ct. Milwaukee County Mar. 10, 1988), the court affirmed the commission's finding of misconduct upon the third occasion of sleeping on the job, which occurred when the employee drove his front-end loader into a secluded wooded area. The court phrased the matter as the employee's having gone to sleep as opposed to falling asleep. Given the employee's driving of the loader to a secluded wooded area, the employee's actions in that case were deemed intentional.

In this case, the employee did not intend to fall asleep. The middle of a grocery aisle is not a secluded area. The commission does not believe that sitting on boxes in an aisle in a grocery store is a situation where it would be easy to fall asleep. The employee may have acted negligently in this case but the commission finds that his actions did not demonstrate "wrongful intent or evil design."

The commission therefore finds that in week 39 of 2000, the employee was discharged from his employment but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee is eligible for benefits beginning in week 39 of 2000, if he is otherwise qualified.

Dated and mailed May 4, 2001
hayesba . urr : 132 : 1 : MC 659.02

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The commission did consult with the ALJ regarding witness credibility and demeanor. The ALJ indicated that she was not sure the employee knew he was going to fall asleep. The employer did not establish the intent or gross negligence necessary to find the employee's actions rose to the level of misconduct connected with his work.

cc: Cullen Goretzke


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